Privacy and free expression: new report looks at legal respones to terrorist and extremist content online
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A new report examines how six states - France, Germany, Israel, Spain, the UK and the USA - as well as the EU and UN have adapted their legal frameworks to try to address online terrorist and extremist content and the effects on privacy and freedom of expression. It focuses on blocking and filtering; online surveillance; criminal law; and administrative law.
The report: The legal response of western democracies to online terrorism and extremism (pdf) by Nery Ramati
The report is published by the VOX-Pol network (link), an EU-funded "academic research network focused on researching the prevalence, contours, functions, and impacts of Violent Online Political Extremism and responses to it."
From the report:
Extremists and terrorists have found the online sphere, and specifically its social networks, to be an efficient tool for advancing their methods and political needs. The legal responses to the resulting threats from this online activity vary from country to country. The immense importance of the Internet in the everyday life of billions of people worldwide has raised difficult questions regarding the attempt to regulate online activity, especially in relation to the right of privacy and freedom of speech. This report examines how western democracies balance, from a legal point of view, the need to protect their populations from terrorist attacks and their duty to preserve the democratic rights of privacy and free speech.
The report examines the legal response to online extremism in six countries: France, Germany, Israel, Spain, the United Kingdom (UK), the United States of America (US), as well as the global response of the United Nations (UN) and the regional response of the European Union (EU). The six countries were chosen because they have experienced incidents of terrorism in recent years and, in all of these countries, recent active internal legislation has been enacted with regard to online extremism. For each country, this report examines the following aspects:
A) The origins of the country's legal system, pyramid of norms and constitutional protections - if they exist - of the right to privacy and freedom of speech;
B) The history of terrorism in the country, specific political conflicts and recent events;
C) The identification of online activity related to recent terrorist attacks;
D) The legislative efforts of each country to tackle the phenomenon;
E) The country's legal policy of blocking and filtering online extremist content and the potential impact on the right to privacy and freedom of speech;
F) The country's online surveillance practices and their potential impact on these rights;
G) The country's criminal law legislation, practices and jurisprudence regarding online statements and their potential impact on the right to privacy and freedom of speech;
H) The country's use of administrative law in relation to online activity and its potential impact on the right to privacy and freedom of speech.
SUMMARY OF FINDINGS
GENERAL LEGAL RESPONSE
The different histories of each country, and the resulting different legal histories, have created diverse paths when it comes to the legal response to online extremism. Countries that were involved in ongoing internal conflicts - such as Spain and the Basque Country, the UK and Ireland, and Israel and Palestine - had pre-existing advanced counter-terrorism legal tools and needed only to adjust some of them to the specific technology change. The ongoing counter-terrorism campaigns in these countries have led to the rights of privacy and freedom of speech being limited as a result of years of legislation and jurisprudence. The extensive use of propaganda by Nazi Germany has impacted the modern German legal system in such a way that the German criminal code contains several felonies that limit the freedom of speech in cases concerning the support of terrorism, hate speech, unconstitutional propaganda and even denying the country's violent history.
On the other side of the spectrum, the fight for freedom from the British Empire by the US, where the Empire imposed severe restrictions on public expression, impacted the drawing up of the US Constitution, making freedom of speech an extremely protected right with almost no direct legislation that limits it. That being said, this report has found that, as online extremist threats have become more evident, most of the countries have reached a common ground in terms of legislation and practice. An example of such unification efforts can be seen in the EU directive on combating terrorism (2017/541) or in the current attempts to pass regulations preventing the dissemination of terrorist content online.
LAW AS A TOOL FOR PREVENTION
All countries in the report had enough legal tools to punish terrorists for their violent actions in the aftermath of terrorist attacks. The main goal of legal counter-terrorism efforts - as seen in the counter-terrorism strategies of the UN, the EU and the individual countries - is to develop legal ways that will help prevent terrorism. The identification of online extremist content as a tool for the planning, radicalisation, dissemination and recruitment that leads to violent attacks has resulted in countries attempting to tackle the issue with preventive measures. This report has identified four commonly seen legal techniques that are used to limit extremist content: the blocking and removal of online content; the surveillance of online activity; the criminalising of certain online public expressions; and the use of online content as a justification for applying restrictive administrative measures.
BLOCKING AND FILTERING
The global demand to remove content and the massive response by the social media companies raises many questions regarding freedom of expression, and the efficiency of counter-terrorism. First, the report highlights several examples of mistaken requests to remove innocent content, including important scientific web pages, and where the appeals procedure is not adequate. Second, in the context of internal political conflict, the removal of extremist content may be used in a one-sided and biased way. And third, the removal of violent extremist content as soon as it is published can hamper academic research on the phenomenon and public help in the early identification of the perpetrators.
The regulatory powers of online surveillance were re-examined in most of the countries featured in the report following The Guardian's Edward Snowden exposure. Revelations of the extent to which the US National Security Agency (NSA) was gathering information on private citizens from all over the world led to the introduction of specific laws dealing with surveillance powers in the US, the UK, France and Germany.
This wave of new legislation still left open some major questions regarding surveillance and the right to privacy however. First, should 'bulk surveillance' be allowed in order to protect state security? The legal answer to that differs from country to country, with the European human rights courts not ruling out the possibility of its use with proper supervision. Second, are the specific warrants for gathering information on a person sufficiently supervised? Once again, the legal situations differ. Some countries allow a non-judicial authority to order surveillance, while others require a judicial warrant. The supervision of the judicial authorities has also been questioned, as in the case of the Foreign Intelligence Surveillance Courts (FISC) in the US. The third point relates to how countries distinguish between restrictions on surveillance of their own citizens and restrictions on surveillance of foreign citizens. While most countries give more power to their intelligence agencies to carry out surveillance of foreign citizens, the essence of the online world, and especially social network platforms, is its 'globality', which creates a situation where agencies carry out surveillance on foreign citizens while also gathering information on their own citizens using tools that are not allowed for that purpose.
The use of criminal law for charging people when it comes to online activity has grown dramatically since 2015 in most of the countries featured in the report. The leaders in this area are the UK, France, Spain and Israel, who charge hundreds of people every year based on their online statements. Increasing numbers of new felonies regarding online activity have been introduced in those countries, including at the European level in the directive on combating terrorism of 2017. This overzealous legislation and use of criminal law has led to criticisms on several points. First, the trend of expanding criminal law when it comes to online content has been constantly pushed, leading to a situation whereby both the UK and France have passed laws that criminalise accessing or viewing extremist content online, without even expressing support for it. Second, many of the new laws contain definitions of the legal terms 'terrorism', 'incitement', 'apology' and 'glorification' that are too widely defined and lack a clear need for intention or acknowledgment of risk. This legislation has created a situation where mild statements, jokes, art or clear political views have been cause for charging people with a criminal offence. Although some will say this phenomenon can be limited by using prosecutorial discretion, it is still contradictory to the rule of law. And third, the report shows evidence from Israel, the US and Spain of biased prosecutions and punishments against jihadi and leftist online statements, but taking a more lenient approach towards right-wing extremist online activity. This kind of situation presents an inherited problem in terms of the prosecution of felonies of speech in countries with a major political conflict, as the current ruling side are more likely to perceive statements made by the opposing political side as more dangerous than statements made by its supporters, extremist as they may be.
Most of the countries in the report use administrative counter-terrorism measures, mainly in order to control and monitor the entry and exit of people from their countries, where an increasing number of the decisions are based on the subject's online profile and activity. These non-judicial actions again raise the fear that, in some cases, decisions are based more on the political content of the online activity and less on the security risk that arises from it. France and the UK are the most active in using administrative law when it comes to other aspects of counter-terrorism, such as restrictions on residence, travel, movements, communications, possessions and work. The main problem with these legal mechanisms is that these administrative warrants are oftentimes based, at least in part, on secret evidence gathered by intelligence agencies. Although the use of secret evidence was restricted by the European Court of Human Rights in A. and Others v. the United Kingdom, a lot of the secret evidence contains data based on individuals' online activity, creating a situation where a person is sanctioned administratively based on their online activities without being given the chance to explain them, since these activities are part of the secret evidence.
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